I’d like to Verify that the Independent Contractors We Use are Not Illegal Workers. Can I have Them Do the Form I-9 So that I Can See Their Work Authority Documents?

You could do that, but it is not a good idea for a couple of reasons.

First, there is a legal demarcation between your company and the independent contractors that you are likely going to want to maintain. It is the demarcation that separates them from being considered employees for purposes of many different and important laws, such as wage and hour (overtime) laws and entitlement to group benefits. Asking an independent contractor to see their work authority papers is something that employers are obligated to do for employees. While not the only consideration as to whether the person is an independent contractor or an employee, the more situations that you have where you treat them like an employee, the greater the deterioration of that demarcation between independent contractors and employees.

Second, by not looking at the work authority documents, employers lessen the risk that they know the person is undocumented. Immigration laws are violated when employers know that someone working for them is undocumented and there is no obligation under federal law for a company to review the Form I-9 for independent contractors. Once they review work authority documents, however, they take on more information than necessary, including information about the independent contractor’s work authority. If a work authority document is obviously counterfeit or a company ignores information that the person lacks work authority, and then lets the person work anyway, they arguably could be fined by the government for allowing the person to work.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.